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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In re: ) ) Complaint of Speer Communications ) CSR-5009-M Holdings Limited Partnership against ) Rifkin & Associates, Inc. ) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: October 27, 1997 Released: October 29, 1997 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1. Speer Communications Holdings Limited Partnership, permittee of Television Broadcast Station WNAB (Channel 58), Nashville, Tennessee, has filed a must carry complaint requesting that the Commission order Rifkin & Associates, Inc. ("Rifkin"), to carry WNAB on its cable systems serving the communities of Lawrenceburg, McMinnville, Pulaski, Spencer and Tullahoma, Tennessee. Rifkin has filed an opposition to this complaint to which WNAB has replied. BACKGROUND 2. Pursuant to Section 614 of the Communications Act and implementing rules adopted by the Commission in its Report and Order in MM Docket 92-259, commercial television broadcast stations are entitled to assert mandatory carriage rights on cable systems located within the station's market. A station's market for this purpose is its "area of dominant influence," or ADI, as defined by the Arbitron audience research organization. ARGUMENTS OF THE PARTIES 3. In support of its complaint, WNAB states that it sent a letter to Rifkin on January 13, 1997, requesting carriage on its various cable systems. In subsequent conversations between the station's engineer, Keith Martin, and Rifkin, WNAB indicates that Rifkin was assured of the station's commitment to provide a good quality signal to the systems' headends and that it would provide any specialized equipment necessary. WNAB states that after the purchase of customized Scala high-gain UHF parabolic antennas and preamplifiers and their installation on two of Rifkin's principal headends, Lawrenceburg and Pulaski, signal tests were conducted which indicated that WNAB met the Commission's signal quality criteria. However, WNAB argues that despite this, it was informed by Rifkin in letters dated March 26, 1997 and April 7, 1997, that it declined to carry the station. Upon questioning this decision, WNAB states that Rifkin maintained that the preamplifiers the station installed on two of its systems' headends were not permitted under FCC regulations and without them WNAB did not provide an adequate signal. WNAB argues that the use of preamplifiers have been explicitly recognized by the Commission as a permissible method of enhancing a television signal. It concludes that it is entitled to carriage on Rifkin's systems because a) both the station and the cable systems are located within the Nashville, Tennessee ADI; b) no increased copyright is incurred by Rifkin for WNAB's carriage; and c) the station has expressed its willingness to pay for any equipment necessary to ensure a good quality signal. 4. In its opposition, Rifkin states that while Mr. Peter Smith, its Vice President of Engineering, did indicate that preamplifiers could not be used, it was not a categorical denial of must carry, but rather due to the fact that the use of a preamplifier, while raising WNAB's signal strength would not cure its poor carrier-to-noise ratio (CNR) and thus not improve the station's signal quality. Rifkin argues that the Commission makes a distinction between signal strength and signal quality and has made it clear that it is up to the television station to take whatever steps are necessary to provide a good quality signal. Therefore, Rifkin maintains that Mr. Smith was well within his rights to advise WNAB that a preamplifier would not be appropriate in this situation and that the station would need to find another way to improve its signal so that the CNR is adequate. Rifkin points out that in its Report and Order in MM Docket 91-169, the Commission recognized how crucial the CNR is to proper picture quality. In this regard, Rifkin attaches a statement of Mr. Smith's detailing why the CNR criterion is relevant to signal quality and is not met in the instant case where WNAB's signal strength is too low to be adequately improved by preamplifiers. Specifically, states Rifkin, Mr. Smith demonstrates that a preamplifier cannot raise the signal strength without also raising the noise level, thus leaving the signal quality in the "annoying" to "very annoying" range of interference. Moreover, Rifkin includes a study done by Cable Television Laboratories regarding viewer expectations of picture quality which shows that the crucial factor is signal noise, not signal strength, and that CNR is the key determinant of acceptable or not acceptable signal quality. Finally, Rifkin points out that in its Must Carry Report & Order, the Commission specifically noted that there may be instances where signal strength alone does not permit adequate signal quality. Therefore, Rifkin argues that WNAB's must carry complaint should be denied and dismissed. 5. In reply, WNAB states that Rifkin's continued failure to carry its signal denies the station the opportunity to compete in its own market. WNAB argues that it has satisfied the requirements under the must carry rules entitling it to carriage by Rifkin. Moreover, it maintains that Rifkin does not dispute that WNAB is within the same ADI or that it is a qualified "local commercial station" entitled to carriage. Instead, WNAB states that Rifkin bases its denial of carriage upon a lengthy analysis of the distinction between signal strength and signal quality and WNAB's alleged failure to deliver a good quality signal to the system's principal headends. WNAB points out that Rifkin cites three specific reasons for its denial: a) WNAB's signal strength is "too low to be adequately improved by preamplifiers"; b) the use of a preamplifier will degrade the signal's CNR; and c) WNAB does not merit carriage because consumers have come to expect a certain level of signal quality. WNAB argues that Rifkin's rationale should be summarily rejected by the Commission. Even assuming Rifkin's signal measurements are accurate, WNAB states that the Cable Bureau has repeatedly granted must carry complaints in instances where stations agreed to provide and bear the costs of any specialized equipment necessary to insure a good quality signal. In the present instance, WNAB argues that it has not only agreed to be responsible for the cost of such equipment, but actively begun the process of installing the necessary specialized equipment which is feels will deliver a good quality signal to Rifkin's systems. WNAB maintains that the Commission is the only entity with the authority to determine whether a signal's chosen means for delivering a good quality signal is adequate and it has clearly and repeatedly recognized that amplification equipment may be employed to deliver a good quality signal to a cable system headend. In addition, WNAB points to an engineering statement of Mr. John F.X. Browne which demonstrates that Rifkin's engineering analysis is fraught with inaccuracies and its allegations about the station's CNR are without merit: a) despite Rifkin's claims, a preamplifier can substantially improve the quality of a broadcast signal, including CNR, which is proved by the fact that WNAB's signal is well within the Commission's signal level criteria in those instances where a preamplifier has been used; b) the measurements made by Rifkin are not only made without the use of a preamplifier, but appear to improperly account for download losses in reaching their conclusions; c) the Commission has not incorporated CNR criteria into the must-carry signal quality requirements specified by the Act and therefore it is not determinative of whether WNAB can provide a good quality to Rifkin's systems; and d) the signal test data provided by Rifkin fails to include specific information required by the Commission. DISCUSSION 6. We will grant WNAB's petition in regard to Rifkin's cable systems serving Lawrenceburg, McMinnville, Pulaski, Spencer and Tullahoma. Initially, we note that Rifkin has not conducted engineering tests in response to WNAB's request for carriage in accord with accepted Commission standards. Since the cable operator is at the outset in a superior position to know whether or not a given station is providing a good quality signal to the system's principal headend, we believe that the initial burden of demonstrating a lack of a good quality signal appropriately falls on the cable operator. In meeting this burden, the cable operator must show that it has used good engineering practices to measure the signal delivered to the headend. To measure a station's signal to see if it meets the Commission requirements, a cable operator's signal strength surveys should, at a minimum, include the following: 1) specific make and model numbers of the equipment used, as well as its age and most recent date(s) of calibration; 2) description(s) of the characteristics of the equipment used, such as antenna ranges and radiation patterns; 3) height of the antenna above ground level and whether the antenna was properly oriented; and 4) weather conditions and time of day when tests were done. While the Commission does not specify which type of antenna must be used to determine signal strength, a cable operator is required to take measurements with "generally accepted equipment that is currently used to receive signals of similar frequency range, type or distance from the principal headend." In addition, a cable operator must conduct multiple signal quality tests to ensure accurate results. Generally, if the test results are less than -51 dBm for a UHF station, we have said that at least four readings must be taken over a two-hour period. In the instant case, not only did Rifkin fail to conduct the proper number of tests, but the only information it provided was the height of the antenna above ground level. Without complete and accurate information provided by Rifkin in conformance without our criteria, we cannot conclude that WNAB provides a poor quality signal at Rifkin's principal headends. Moreover, the carrier-to-noise ration (CNR) directly derives from the signal level received and the associated noise level present at the time of measurement. Therefore, without first establishing concrete signal level measurements of the desired signal using good engineering practices, we find that Rikin's analysis with regard to carrier-to-noise ratio (CNR) to be speculative and its arguments in this regard dismissed. 7. We also note that WNAB has offered to provide specialized equipment to Rifkin to improve its station's signal. WNAB maintains that with the use of specialized equipment, it can provide a signal to Rifkin's headends consistent with Commission criteria. Moreover, WNAB has stated that it will bear the costs of installing such equipment to assure a good quality signal. The Commission has stated that specialized equipment may be employed to deliver a good quality signal to a cable system headend. The Commission in the Must Carry Clarification Order, after re-emphasizing that it was the television station's obligation to bear the costs associated with delivering a good quality signal to the system's principal headend, stated: This may include improved antennas, increased tower height, microwave relay equipment, amplification equipment and tests that may be needed to determine whether the station's signal complies with the signal strength requirements . . . WNAB, by committing to provide specialized equipment, satisfies its obligation to bear the costs associated with delivering a good signal to Rifkin's headends. We encourage Rifkin and WNAB to work together in this regard. ORDERING CLAUSES 8. Accordingly, IT IS ORDERED, that the petition filed March 21, 1997, by Speer Communications Holdings Limited Partnership IS GRANTED pursuant to 614 of the Communications Act of 1934, as amended (4 U.S.C. 534). Rifkin & Associates, Inc. IS ORDERED to commence carriage of Station WNAB on its Lawrenceburg, McMinnville, Pulaski, Spencer and Tullahoma cable systems sixty (60) days from the date that WNAB provides a good quality signal at Rifkin's principal headends unless Rifkin provides, within fifteen (15) days of the release date of this Order, an engineering showing which provides data, pursuant to Commission cirteria, to demonstrate poor signal quality on the part of WNAB. 9. IT IS FURTHER ORDERED, that WNAB shall notify Rifkin in writing of its carriage and channel position elections (76.56, 76.57, and 76.64(f) of the Commission's Rules) within thirty (30) days of providing a good quality signal. 10. This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION Gary M. Laden Chief, Consumer Protection and Competition Division Cable Services Bureau